San Bernardino County’s reported attempt to use eminent domain to expropriate mortgages could be struck down by the courts as inconsistent with the requirements of the Fifth Amendment’s Takings Clause. Although weakened by decades of court decisions ignoring its original meaning, the clause remains a vital protection of private property rights, particularly where the government seeks to seize property from one private party for the narrow benefit of another.

Not only does the San Bernardino plan run afoul of that limitation, but it is also structured so as to deny mortgage owners the full degree of “just compensation” to which they are entitled by the Takings Clause.

Any attempt to seize mortgages from their owners would inevitably be met with litigation that could drag on for years, substantially undermining any benefit the county may hope to achieve. County officials would be reckless to discount these concerns.

Across the country and north a bit, another issue related to eminent domain has been raised in my home state of New Hampshire. The Northern Pass Project (NPP), initiated by Canadian company Hydro-Quebec, in partnership with Northeast Utilities subsidiary Northern Pass Transmission, LLC, aims to put up a direct current transmission line to bring 1,200 megawatts of electricity into the New England region. While eminent domain is not critical to the project’s success, it was deemed important enough for both chambers of the New Hampshire legislature to pass, and for Governor John Lynch to sign, legislation in March 2012 preventing public utilities (initiated from concerns related to NPP) from using eminent domain, unless it is being used for a project being paid for by customers through electric rates.

I first learned of the Northern Pass issue from Katie Rose, a professional singer whose song “Live Free or Die” has led some of the grassroots opposition to the power lines. Katie, also known as my little sister (full disclosure and all that), brought to my attention just how widespread the opposition is to Northern Pass when she was asked to play her song at a GOP event and a Tea Party event, and later both sang at and emceed the liberal “North Country Summer Festival.” Liberal environmental groups and the New Hampshire chapter of Americans for Prosperity are even on the same side, a sure sign of either a bad policy idea being presented or the sign of the Apocalypse.

“I am opposed to this project because it is going to hurt thousands of people,” said Katie. “Additionally, their methods leave much to be desired. One major problem is that the Northern Pass people seem to have an entitlement problem. Much like the wind turbines in Vermont that had little local input and ended up blocking off an entire mountain, Northern Pass is not trying to work with the people their project would affect. Governor Lynch made it very clear they need the approval and support of local towns and their residents, but instead of being upfront Northern Pass has created multiple offshoot businesses in order to trick locals into selling their land for well above market value. Over 30 towns have nearly unanimously opposed the project, yet Northern Pass continues to try and bulldoze their way through the North Country’s residents.”

According to Charlie Jordan, editor of the Colebrook Chronicle, the largest local weekly newspaper in Northern New Hampshire, this opposition to Northern Pass is no surprise to him. “This area has a strongly libertarian streak. Coos County may have been the strongest area for Ron Paul in the state, and may have even carried the most votes per capita of any county in the country. This makes it the worst area in the state to try and take over. It was very naïve of Governor [John] Lynch to think the North Country would just roll over and go along with this, which is why I am grateful he listened to the people of New Hampshire signed the eminent domain bill in March 2012.”

Jordan explained that he foresaw this kind of issue coming a decade ago. “Ten years ago there was a big move for the state to own more property to protect it from harm. I opposed that because, while conservation is noble, it means the only areas that can be developed are those where people live. In this case, wires are going to be running over and near the homes of people. I’m all for protecting animals, but when you can put a fluorescent light bulb underneath these wires and it turns on, that’s a problem. What about the dangers to people?”

According to Jordan, the issue includes both home-based businesses and general property value principles. “While it will be mostly homes that will impacted, a variety of businesses – such as a golf course in Campton – will be affected. They’re even planning on running lines almost directly through the center of my town, Clarksville.”

“People don’t come to New Hampshire to move into, or vacation near, an industrial zone,” continued Jordan. “The state told the North Country what to do in certain ways ten and more years ago, ostensibly to help us, and now it’s decided to hurt us through the Northern Pass Project, which does not help Northern New Hampshire. It doesn’t even help southern New Hampshire – it only helps southern New England. The problem isn’t up here; it’s in New Haven, Connecticut, where they want to have ten lightbulbs instead of five. We shouldn’t be punished for the irresponsibility and excesses of people two states away.”

According to Mike Skelton, spokesman for Public Service of New Hampshire (PSNH) and Northern Pass, LLC, the state would benefit far more than Jordan and Katie believe. “The primary driver behind the Northern Pass Project is to deliver low-cost, environmentally-friendly energy into New Hampshire and the New England power system, thereby meeting the expectations of policy makers that we move toward a cleaner, more renewable energy future. The 1,200 megawatts this project would provide is equal to the power needed to power one million residential homes.”

Skelton continued, saying “The project will utilize 180 miles in total of power line rights of way in New Hampshire, 140 miles of which already exist today.Northern Pass is seeking to establish a new right of way north of Groveton New Hampshire to the Canadian border for the remaining 40 miles. The project ends in Deerfield, New Hampshire where it connects to the regional power grid.. By injecting 1,200 megawatts of new low cost power to the regional market, New Hampshire will save $20 million to $35 million annually in energy costs. New Hampshire is a net energy exporter, but that does not mean New Hampshire is “energy independent” or does not need projects like Northern Pass.Energy currently produced by privately owned power generators and sold out of state does not benefit New Hampshire customers, yet is cited as a reason as why we don’t need the power from Northern Pass. What opponents of Northern Pass are missing is that New Hampshire is part of a regional power grid, and all customers will benefit from bringing 1200 megawatts of low cost power to the regional market.”

According to Skelton, the concern of eminent domain is a non-issue the transmission line. “NPP never depended on the use of eminent domain nor did we seek to use it. To be frank, concerns over eminent domain have only been brought forth as an issue by opponents of NPP, not the project. The new law adopted by the legislature regarding eminent domain has had no effect on our plans to move the project forward. The law clearly prohibits the use of eminent domain for projects like Northern Pass. However, eminent domain has never been part of our plans and we are focused on working with landowners.”

“Concerns about jobs cited by project opponents are misplaced,” continued Skelton. “NPP has provided economic impact studies and engaged an economist to demonstrate that the project will create 1,200 jobs annually during the three year during construction period. The project will create 200 additional jobs per year once the line is in service through decreased energy costs. Project opponents have not put forward anything to substantially refute the positive economic benefits of this project. Beyond the economic impact studies that Northern Pass has provided, its useful to consider what the impact of a similar power line in New Hampshire has been. This power line larger, both in size and the amount of energy delivered, and goes through Bedford and Hopkington, which are two of the more desirable towns in New Hampshire. A property appraisal expert were hired to look at this issue found the existing line did not have an impact on property values.”

Regarding Katie’s assertion that manipulation was taking place, Skelton said Northern Pass has worked openly and honestly with local landowners. “We have worked with land owners who are willing to work with us for a number of months. Our team is transparent with all property owners as a matter of practice. I would disagree with Katie’s perspective completely. . It seems hypocritical that those who were most supportive of taking eminent domain off the table are now criticizing those who sell property to Northern Pass. We are not forcing any landowner to sell to us, it’s simply a matter if our interests and the landowners interests are in alightment and we are able to reach an agreement .. Sometimes that happens, sometimes it doesn’t. That’s how market works, and how this process works.”

I’ve spoken to a number of New Hampshire friends and acquaintances over the last 18 months about this, from libertarians to conservatives to moderates to liberals, and the closest thing to supporting the NPP I have found was one friend who didn’t know enough to really have an opinion. According to these people, admittedly largely based in the North Country, opposition is strong. However, a February 2012 UNH poll shows support is actually slightly larger than opposition, and Skelton noted there is support for the project outside of the North Country.

Of course, the battle is not over, though the grassroots opposition seems to be pressuring many public figures regarding their positions. GOP gubernatorial candidate Ovide Lamontagne, who works for a law firm representing NPP, had to significantly clarify his stance in April, and Newt Gingrich was hammered for taking a middling position on NPP when he campaigned in the state last year. We’ll have to see if the energy of the grassroots can match the funding and organization of NPP.

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So let me get this straight:
1) NPP is buying land outright, rather than through eminent domain
2) NPP is paying landowners *above* market value

I’m not sure what the issue is here. Are they buying little plots of land for each tower, and stringing cables over the heads of other landowners? It seems to me that there ought to be some legal issues there. But it doesn’t sound like they’re buying off politicians, or threatening people, or doing anything particularly unreasonable.

If they’re creating shell companies to buy up parcels of land undetected, it sounds underhanded, but it’s not unusual. Disney bought up land for the Walt Disney World site in much the same–using various subsidiaries so they wouldn’t get ripped off.

The residents of NH are free to vote to block the power lines, but I’m not quite understanding what the big objection is to it.

(BTW, if you look at the satellite view of Groveton NH on google maps, you can clearly see the existing powerline rights-of-way)

Count me as one of those in favor of the project. I live in Franklin, and one of the proposed plants is supposed to be built here in town. Right now, Franklin is hurting seriously because of the economy, and it would be nice to be able to put that jolt into the arm of this city.

This is the type of lead in that stops me…”It was a cold dark winters night, the wind was blowing, when I realized, that a song being sung by a singer created grassroots under my feet…great now I have to mow the lawn…

Not getting support from me. If people want to sell there land at “well above market value” so the buyer can put up a power line – it is their land they should be abole to do it. How is this any different than Keystone – that we all support – mostly.

Sorry, but those people chose to sell their home at a net gain to themselves? Can’t fault them for that.

Now, one thing that does bug me… this was listed as a “direct current transmission line”. Last I knew, DC was a horribly inefficient method of long distance power transmission. Was this perhaps a copy-editing oversight? Or is there something I have missed, new technology or new research?

In general, eminent domain for utilities (power, water, pipelines, etc) takes the form of easements. Sometimes they need to buy or condemn small parcels of land for basing towers. It ain’t like throwing aunt katie out of her house to build a Kmart. A very large portion of the NH electorate are refugees from the socialist republic of boston, where they are rich enough to go to NH to escape the big city.

Having often driven in NH, I find that the NH motto os often mis-stated. Most peole think it is “Live Free or Die” I know, however, it must be “live Free AND die” from the way they drive.

This is one of those things the Constitution gives us tremendous latitude to work out amongst ourselves. It sounds like NPP is paying people more than market value for their land. Not liking the introduction of the power line is one thing, but this seems to have nothing to do with eminent domain.

I sympathize with folks who don’t want eyesores running through their nice pastoral surroundings. I might oppose the NPP line myself if I lived in the area, but I don’t see how eminent domain comes into it, if NPP is overcompensating sellers for their land.

I hope each person with a nice chunk of change from selling his land is able to buy some even more remote, pastoral land and live out his days untroubled by power lines blotting the landscape.

Now it appears that if buried and underground it’s a new ballgame with DC. This is new technology about 10 years or so old.

Kermit on July 17, 2012 at 7:07 PM

Not sure if I’m comparing apple to oranges, but Montreal buried its overhead wires in the 1970′s, since ice would bring them down onto the sidewalks almost every year. But that was before Globull Warming when that city had real winters.

Direct current never took off because it dissipates rather quickly and there would need to be power plants every few miles of transmission line.

We use Alternating Current here in the U.S., as well as in Canada, though the Hz is different as well as the voltages. Canada is using European voltages.

Kermit on July 17, 2012 at 6:37 PM

It’s going to be AC here too. They plan on constructing a large inverter to convert the DC to AC. The actual line coming from Canada is about 35 miles. One cost advantage would be transmission line costs. DC lines are two phase while AC lines are three. Less transmission cable fewer dollars. However I’d think the cost of building, maintaining and operating the inverter would eat up those savings. Canada uses the same voltages and frequency as the U.S. standard 110/115volts 60 cycle or Hertz to you younger guys.

Direct current never took off because it dissipates rather quickly and there would need to be power plants every few miles of transmission line.

We use Alternating Current here in the U.S., as well as in Canada, though the Hz is different as well as the voltages. Canada is using European voltages.

I’m an EE, and I will correct the misinformation here. There are some misconceptions in this thread about AC vs DC.

Short version: DC transmission used to be more lossy than AC, but we’ve overcome that hurdle. A given set of power lines can carry more DC current than AC current, so there’s a capacity boost if you use DC instead of AC.

Long version: Transmission losses depend on how much current you’re pushing through the wires (and on the resistance of the wires). The higher the voltage you use to transmit power, the less current you need to push, and so the lower your losses. It’s easier to get high-voltage AC (all you need is a transformer) than it is to get high-voltage DC (significantly more complex equipment). Nowadays, we have the technology to generate high-voltage DC (HVDC), and it’s actually not that uncommon.

Now, one thing that does bug me… this was listed as a “direct current transmission line”. Last I knew, DC was a horribly inefficient method of long distance power transmission. Was this perhaps a copy-editing oversight? Or is there something I have missed, new technology or new research?

TASS71 on July 17, 2012 at 6:38 PM

No, they’re really planning on bringing the power in as DC current and then converting it to AC.

What’s your take on why they elected to bring the power in DC instead of AC? Surely it can’t just be the dangers of induced EM fields argument can it? There’s gotta be some economic considerations in there somewhere.

Good point. I didn’t cotton to the point about this being an in-ground line. Power lines can be extremely visible when they’re on the above-ground structures, but if they’re buried, you just get a series of junction boxes and a security perimeter.

I hate to see folks beating up on Dustin here. He’s working through some thoughts on an important topic.

The DC versus AC question is interesting, and it’s hard for my non-electrical-engineering brain to come up with reasons.

This post is definitely too wordy. Dustin, keep it simple – unless you are paid by the word. There is litle in this post that couldnt be said in two or three paragraphs. (Oh! It does my engineer’s hear good to say this to a liberal arts type professiona writer. I’ve waitd years!)

What’s your take on why they elected to bring the power in DC instead of AC? Surely it can’t just be the dangers of induced EM fields argument can it? There’s gotta be some economic considerations in there somewhere.

Yeah, it’s actually pretty simple: you can shove more DC current down a given power line than you can AC current. Alternatively, you can use a smaller cable to deliver the same amount of current if you’re using DC.

Yeah, it’s actually pretty simple: you can shove more DC current down a given power line than you can AC current. Alternatively, you can use a smaller cable to deliver the same amount of current if you’re using DC.

Mohonri on July 17, 2012 at 8:06 PM

Yeah, but then you’ve got to convert it to AC and the inverter setup isn’t cheap. That would pretty much negate any savings managed by less cable. Plus speaking from experience inverters require more maintenance than a transformer so you’d have continuing expense from that. I’m not seeing a big advantage money wise here for D.C.

I stopped reading this long, meandering whiney NIMBY post. Us NH folks down by the seacoast have massive power lines running “through the center of our towns” (gasp) from the Seabrook nuke. Yes the enviroweenies hate Seabrook but having massive power lines nearby is part of the cost of the tremendous benefit electricity brings to everyone. SOMEONE has to have the power lines. Northern NH is beautiful but not nearly as heavily populated as the seacoast. We’re fine with the power line infrastructure, so Dustin and his sister need to put on their big boy and big girl pants and deal with it in a reasonable manner.

I was talking to my brother and a friend about this post, and I think what happened is that I figured that since I’m only helping out for a week I want to have good, strong, substantive stuff instead of short, pithier posts.

It sounds like NPP is paying people more than market value for their land. Not liking the introduction of the power line is one thing, but this seems to have nothing to do with eminent domain.

Depends… NPP’s been news all over NH for a while. If an owner who states he’s opposed to the NPP is offered “well above market value” for their property, sells to “Fred’s Lovely Forest Co” and then watches as a 200 foot power tower is erected, either he was willfully ignorant and didn’t do his homework, or he’s a hypocrite.

If the same owner is made the same offer by “Fred’s Lovely Forest Co”, asks what use the land will be put to after the sale, and either gets an evasive answer or a flat-out lie (or no answer at all), that’s unethical at best. If the owner still sells, then it’s on him when the 200 foot tower goes up.

The main problem I have with it is that landowners up there pay an exhorbetant “view tax”. So if I had a cottage up there with a spectacular view of Mt. Washington, and all of the sudden it’s blocked by a 200 foot tower (on land that I never owned), will my “view tax” be reduced or rescinded? Given the fact that both sides of the aisle never saw a tax that they didn’t love (or refused to reduce), I think the answer to that is “probably not.”

First this article was way too long and second I can’t believe you are bashing a company who is NOT using eminent domain or government subsidies and instead is buying properties ABOVE market value for a project.